For the past two days in the Kelowna courthouse, lawyers have made their case for why a judge should or shouldn’t allow a pastor the opportunity to challenge the constitutionality of a COVID-19 public health order.
On Jan. 24, 2021, Pastor Arthur Lucier of Kelowna Harvest Church International, was issued a ticket of $2,300 for holding an in-person worship service, contravening the public health orders restricting gatherings that had been implemented earlier in the month.
After being ticketed, Lucier sought a motion to challenge the “constitutionality” of the order but in September 2022, the Court ruled against the request.
The Court ruled that Lucier should have filed for a judicial review when the order was implemented, rather than using the “breach first, challenge later,” approach.
On Nov. 14, Lucier was found guilty of breaching the order and was officially fined.
Lucier is now appealing the decision with representation from lawyer Paul Jaffe from the Justice Center for Constitutional Freedoms law firm.
In court on Jan. 30, Jaffe alleged that churches were unfairly targeted, and that the pastor’s rights were infringed upon by the province’s mandates.
Jaffe argued that “you are not obliged to exhaust all of the procedures in order to be allowed to challenge the constitutionality of an order.” He said that Lucier had no feasible option other than “breach first, challenge later.”
He alleges that because Lucier is defending himself, and judicial reviews are not an effective means of advancing a constitutional challenge, he should be allowed to have his day in court.
Crown lawyer Micah Rankin said that Lucier did not take the appropriate steps to avoid a fine and that filing for a judicial review is effective and would have been the most appropriate course of action.
Rankin said that the pastor should not be granted an opportunity for an appeal to challenge the orders since he did not go through the proper procedures and because his rights were not unfairly infringed upon.
Rankin said that during a pandemic, people’s freedoms will be restricted to prevent the spread of a disease. He said that over the course of the COVID-19 pandemic, the restrictions were everywhere, not just in churches.
He said that although Lucier and his council are not happy with the results that they got in the previous court-case, “being unhappy doesn’t mean that the process is unfair.”
As is stands, Lucier has until December 2023 to pay his fine. The judge will make a decision on whether the application for an appeal, allowing a challenge of the constitutionality of public health orders, will be accepted, over the coming week.